Leanne Wied v. Scott Wheeler

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1953 Cir. Ct. No. 2020CV1745

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN EX REL. LEANNE WIED,

PLAINTIFF-APPELLANT,

V.

SCOTT WHEELER AND JEAN LAMBERT,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Reversed and cause remanded with directions.

Before Gundrum, P.J., Grogan and Lazar, JJ.

¶1 GUNDRUM, P.J. On May 12, 2020, the Board of Education for the
Elmbrook School District (board) met—via Zoom due to the Covid-19
No. 2022AP1953

pandemic—to select a candidate to fill a vacancy on the board.1 Leanne Wied and
Mushir Hassan were two of four candidates under consideration to fill that
vacancy. Hassan was ultimately selected.

¶2 Wied filed this complaint against Scott Wheeler and Jean Lambert,
respectively the president and vice-president of the board, alleging they violated
the Wisconsin Open Meetings Law by utilizing secret email voting for the
selection process during that May 12 meeting. Wheeler and Lambert filed a
motion to disqualify Wied as relator, which the circuit court granted.2 The parties
thereafter stipulated to the substitution of Neil Bubke as relator.3 Subsequently,
the court denied Bubke’s motion for summary judgment, granted summary
judgment to Wheeler and Lambert, and dismissed the case. Bubke asserts the
court erred in disqualifying Wied as relator and in concluding Wheeler and

1
The meeting was open to the public through a link on the school district website. A
recording of that meeting is available at
https://www.youtube.com/watch?v=xfTJQWc6XAk&t=6434s (last visited Jan. 17, 2025) and can
also be reached through the school district’s YouTube page. Wheeler and Lambert have not
objected to Bubke’s significant reference to the video in his briefing, and we may take judicial
notice of public records. See Sisson v. Hansen Storage Co., 2008 WI App 111, ¶11, 313 Wis. 2d
411, 756 N.W.2d 667 (“We may take judicial notice of matters of record in government files.”);
Meyers v. Bayer AG, 2007 WI 99, ¶81, 303 Wis. 2d 295, 735 N.W.2d 448 (Roggensack, J.,
dissenting) (“[A] court may take judicial notice of facts easily accessible and capable of
immediate and accurate determination.” (citing Perkins v. State, 61 Wis. 2d 341, 346, 212
N.W.2d 141 (1973))); see also WIS. STAT. § 902.01(2)(b) (2021-22) (allowing for judicial notice
of facts “capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned”).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
The Honorable Judge Lloyd V. Carter presiding.
3
The circuit court did not amend the caption of this case to reflect Neil Bubke as relator.

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No. 2022AP1953

Lambert did not violate the open meetings law. For the following reasons we
agree, and we reverse.4

Background

¶3 On May 12, 2020, the board held a meeting via Zoom to interview
and consider four candidates, including Wied and Hassan, to fill a vacant seat on
the board. In his affidavit, Wheeler indicates that following the interview portion
of the meeting, he “directed all [b]oard members to send an email with their
preferences” to him and the executive assistant for the board providing the
member’s “first and second preference from the four candidates.” Wheeler
assigned two points for a member’s first preference and one point for a second
preference. Wheeler avers that “[i]f four or more [b]oard members selected the
same person as their number one preference, it would show a majority was in
favor of a particular applicant. At that point, I would ask for a motion to conduct a
vote on that individual.” The members’ emails, which the district released in
response to a public records request, show that members emailed their preferences
within two minutes of Wheeler soliciting them, and the video recording of the
meeting shows Wheeler received those emails in that same time frame.

¶4 Wheeler avers and the released email records show that no applicant
was the first preference of four or more members during this first round of email

4
Bubke also raises another issue—whether Wheeler and Lambert also violated the open
meetings law by allowing the board to interview and consider four candidates at the May 12
meeting when the pre-meeting notice indicated “up to 3” candidates would be interviewed and
considered. Because Bubke fails to sufficiently develop an argument showing the circuit court
erred as to this issue, we decline to address it. See Clean Wis., Inc. v. PSC, 2005 WI 93, ¶93
n.31, 282 Wis. 2d 250, 700 N.W.2d 768 (“[A] reviewing court need not address arguments
insufficiently developed.”).

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preferences. The email preferences of the individual members and the point totals
for the candidates were not announced or otherwise made known to the public or
board members, other than Wheeler, during the meeting, but the names “Leanne
Wied” and “Mushir Hassan” were displayed on the screen, indicating they were
the top two preferences the board would continue to consider for the appointment..
Emails show that during this first round of email preferences, Wheeler and
Lambert both chose Hassan as their first preference and Wied as their second.

¶5 According to the recording of the meeting, after the board finished
further discussion regarding the remaining two candidates—Hassan and Wied—
Wheeler stated, “Any other conversation before we take a vote? And again this
vote is part of our conversation; this is not a motion at this point. It’s just to see
where we are at in terms of consensus.” Wheeler prompted members, “If you had
to select one now, who would that one be,” and members began emailing Wheeler
and the executive assistant their preference as between Wied and Hassan. After
approximately two minutes, Wheeler stated, “All the votes aren’t in yet,” and then,
“Waiting for two more.” Seconds later, Wheeler stated, “Waiting for one,” and
approximately forty seconds after that, “Jian Sun we’re waiting for you.” About
thirty seconds later, approximately three-and-one-half minutes after Wheeler
invited members to begin emailing him their preferences, Wheeler announced that
the preferences were “tied, 3-3.” The preferences of the individual board members
were not announced or otherwise made known to the public or other board
members at this or any other time during the meeting, but the released email
records show that for this second round of email preferences, board members Glen
Allgaier, Jian Guo Sun and Linda Boucher emailed their preferences for Wied, and
members Wheeler, Lambert and Jen Roskopf emailed their preferences for
Hassan.

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No. 2022AP1953

¶6 Following the tie, more discussion took place, followed by a third
round of email preferences, with the choice again being only between Wied and
Hassan. Wheeler instructed members, “You’re voting for one candidate after
thinking, considering.” Over the next few minutes, members again emailed their
preferences to Wheeler and the executive assistant. Wheeler and Lambert again
emailed their preferences for Hassan, and Boucher and Sun again emailed their
preferences for Wied. Then, Allgaier emailed his preference, switching from
Wied in the second round to Hassan in the third. With that email, Wheeler and the
executive assistant had received three email preferences for Hassan and two for
Wied. According to time stamps on the emails, Roskopf emailed Wheeler and the
executive assistant her preference thirty-one seconds later, switching from Hassan
in the second round to Wied in the third. With that email, three members had sent
emails indicating their preferences for Hassan and three had sent emails indicating
their preferences for Wied, with both Allgaier and Roskopf having switched their
preferences from the second round.

¶7 Though only three members—Wheeler, Lambert and Allgaier—had
emailed a preference for Hassan, Wheeler announced, “We’ve got four votes for
Mushir [Hassan] and two votes for Leanne [Wied]. That’s enough for a motion.
That’s a consensus.” Moments later, Wheeler stated, “If we don’t make a motion,
then I would suggest we adjourn. But, again, we do have four. So, is there
somebody that would like to make a motion?” Approximately forty-seven
seconds after Wheeler began announcing “four votes for Mushir,” Lambert made a
motion to appoint Hassan to fill the vacant seat on the board, and Allgaier
seconded the motion. A roll call vote resulted in five members voting to appoint
Hassan, with one member abstaining. The meeting concluded approximately three
and one-half minutes after Wheeler had begun announcing, “We’ve got four votes

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No. 2022AP1953

for Mushir [Hassan].” During that time, Wheeler never announced that Hassan
had received only three preferences, and there was no disclosure to the public or
other board members during the meeting as to which individual board members
had indicated a preference for Hassan and which had indicated a preference for
Wied. At no time during the remainder of the meeting did Wheeler prompt
Roskopf to send in her email preference, as he had prompted Sun in round two, or
indicate he had not received Roskopf’s email preference.

¶8 Wheeler avers that “[i]n preference round three, as the email
preferences came in, I could see one [b]oard member who had preferred Leanne
Wied changed the preference to Mushir Hassan. At that point, I believed there
were 4 preferences for Mushir Hassan and 2 preferences for Leanne Wied. I
announced that result.” He further avers that he “later learned that, during round
three, a [b]oard member who initially preferred Mushir Hassan had changed to
Leanne Wied. This would have, again, resulted in a 3-3 tie. That email was
delayed, which is why I did not see it during the meeting.” No evidence in the
record indicates that following the conclusion of the meeting, Wheeler took any
steps to inform the public or board members that he had only received three, not
four, email preferences for Hassan and that he had received three email
preferences for Wied.

¶9 Wied filed this action alleging Wheeler and Lambert violated
Wisconsin’s Open Meetings Law during the May 12, 2020 meeting. She sought

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No. 2022AP1953

the imposition of civil forfeitures against Wheeler and Lambert and attorney fees
and costs incurred in prosecuting this action.5

¶10 Wheeler and Lambert filed a motion to remove Wied as relator,
which the circuit court granted on the apparent basis that Wied had a “personal
interest” in this matter in part because she had filed a notice of claim against the
Elmbrook School District (district) seeking compensation for the salary she would
have received if she, instead of Hassan, had been appointed to fill the school board
vacancy.6 Bubke was substituted as relator. The court subsequently granted
Wheeler and Lambert summary judgment based on its belief that “there needs to
be some demonstration that there was some intent to hide something” and its
determination that it could not conclude there was such intent because the records
of the May 12 email preferences were eventually released in response to a public
records request.

¶11 Bubke appeals, challenging the circuit court’s order removing Wied
as relator as well as its order granting summary judgment to Wheeler and
Lambert.7

Wied is not asking that Hassan’s one-year appointment to the board, which began in
5

May 2020, be declared null and void.
6
The record does not contain a transcript of the August 23, 2021 hearing at which the
circuit court disqualified Wied as relator. The briefing by both parties before the circuit court and
on appeal, however, indicates the court removed her as relator because she had a personal interest
in the matter as evidenced by her notice of claim.
7
The notice of appeal filed by Bubke refers only to the order granting summary
judgment. However, the parties also briefed the issue of whether the circuit court erred with its
order removing Wied as relator. We will consider both issues. See WIS. STAT. RULE 809.10(4)
(“An appeal from a final judgment or final order brings before the court all prior nonfinal
judgments, orders and rulings adverse to the appellant and favorable to the respondent made in
the action or proceeding not previously appealed and ruled upon.”).

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No. 2022AP1953

Discussion

¶12 We review de novo the circuit court’s grant of summary judgment.
Paskiewicz v. American Fam. Mut. Ins. Co., 2013 WI App 92, ¶4, 349 Wis. 2d
515, 834 N.W.2d 866. “Summary judgment is properly granted if there is no
genuine issue of material fact in dispute and the moving party is entitled to
judgment as a matter of law.” American Fam. Mut. Ins. Co. v. American Girl,
Inc., 2004 WI 2, ¶22, 268 Wis. 2d 16, 673 N.W.2d 65. Whether, in granting
summary judgment to Wheeler and Lambert, the circuit court “properly
interpreted and applied the open meetings law” are questions of law we review
de novo. See State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ.,
2017 WI 70, ¶20, 376 Wis. 2d 239, 898 N.W.2d 35.

Removal of Wied as relator

¶13 We first consider whether the circuit court erred in removing Wied
as relator. This question requires us to apply the open meetings law to the
undisputed facts, which is a matter of law we review independently. See State ex
rel. Badke v. Village Bd. of Greendale, 173 Wis. 2d 553, 569, 494 N.W.2d 408
(1993).

¶14 WISCONSIN STAT. § 19.97 “Enforcement,” provides:

(1) This [“Open Meetings of Governmental Bodies”]
subchapter shall be enforced in the name and on behalf of
the state by the attorney general or, upon the verified
complaint of any person, by the district attorney of any
county wherein a violation may occur….

.…

(4) If the district attorney refuses or otherwise fails to
commence an action to enforce this subchapter within 20
days after receiving a verified complaint, the person
making such complaint may bring an action under subs. (1)

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No. 2022AP1953

to (3) on his or her relation in the name, and on behalf of,
of the state.

(Emphases added.) Pursuant to this statute, “any person” who makes a verified
complaint may bring an open meetings law action if the district attorney fails to
act.8 The statute does not limit “any person”; it does not state that only certain
persons may bring an action. Wheeler and Lambert direct us to no law indicating
a relator does not qualify as “any person” simply because he or she may have
some personal interest related to a matter that was under consideration at the
challenged meeting.

¶15 Indeed, it is often the homeowner, business owner, or other person
directly aggrieved by a government entity’s conduct that has enough interest and
motivation to pursue an open meetings law action, because he or she is disturbed
by either the process related to or the outcome of a meeting, or both, and often in
an attempt to undo some official action taken at the meeting. The legislature
appears to have understood that persons with a personal interest would utilize this
statute, as WIS. STAT. § 19.97(3) makes voidable “[a]ny action taken at a meeting
of a governmental body held in violation of this subchapter.” It would be a unique
case indeed in which a person with no interest in the outcome of a government
action brought an open meetings law challenge in an attempt to void the action.
Furthermore, were open meetings law challenges restricted to only disinterested
persons, there would likely be little citizen enforcement of the statute, to the
detriment of the public. In short, we see no reason to believe the legislature
intended to restrict relators to only persons who do not have a personal interest

8
When interpreting the text of a statute, we follow the framework set forth in State ex
rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44-52, 271 Wis. 2d 633, 681
N.W.2d 110.

9
No. 2022AP1953

related to a meeting. Wheeler and Lambert’s assertion that Wied cannot serve as
relator because she has a personal interest in the case and served a related notice of
claim on the district fails.

¶16 Our supreme court’s decision in State ex rel. Hodge v. Town of
Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993), supports this conclusion.
In that case, Hodge applied to the town for a permit to store junked automobiles on
his property. Id. at 67. Believing the law allowed for it, the board conducted
deliberations regarding the permit in closed session and then returned to open
session and unanimously voted to deny Hodge the permit. Id. at 68. Hodge
submitted a verified complaint to the district attorney asserting that the closed
deliberations violated the open meetings law. Id. at 69. When the district attorney
refused to prosecute, Hodge filed suit. Id. Ultimately, our supreme court
determined the board had violated the open meetings law, and it granted Hodge
relief, including voiding the board’s action denying him the permit and remanding
for the board to reconsider the permit application “in a manner consistent with the
[o]pen [m]eetings [l]aw.” Id. at 76. Despite Hodge’s direct personal interest in
the outcome of the board’s action—to be permitted to store junked vehicles on his
property—and the suit challenging it, he was in no way precluded from
maintaining the suit under the open meetings law.

¶17 Discussing Hodge, Wheeler and Lambert write that pursuant to it
“relators under the [o]pen [m]eetings [l]aw serve as private attorneys general by
vindicating the rights of the public to open government.” (Emphasis added.)
Wheeler and Lambert omit key language, as Hodge actually states: “[T]he
prevailing relator under the [o]pen [m]eetings [l]aw serves as a private attorney
general by vindicating his or her own rights and the rights of the public to open
government.” Id. at 78 (emphasis added). This key, emphasized language, along

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No. 2022AP1953

with the plain “any person” language of WIS. STAT. § 19.97, ends discussion as to
Wheeler and Lambert’s contention that Wied could not serve as relator because
she, like Hodge, may have a personal interest in challenging the process that led to
Hassan’s appointment during the May 12 meeting. A relator need not be
disinterested in order to pursue an open meetings law challenge.

¶18 In a grasping-at-straws effort, Wheeler and Lambert direct us to
WIS. STAT. § 978.045(1r)(bm)8. in support of their position that the circuit court
properly removed Wied as relator. This provision, they assert, “provides courts
discretion to preserve the independence of a prosecution in the face of a conflict of
interest” and “enables the court to install an independent, impartial, and personally
disinterested prosecutor.” This statutory provision provides Wheeler and Lambert
no assistance. It states in relevant part:

(bm) The judge may appoint an attorney as a special
prosecutor at the request of the district attorney to assist the
district attorney in the prosecution of persons charged with
a crime, in grand jury proceedings, in proceedings under
[WIS. STAT.] ch. 980, or in investigations…. [T]he judge
may appoint an attorney as a special prosecutor only if the
judge or the requesting district attorney submits an affidavit
to the department of administration [DOA] attesting that
any of the following conditions exist:

….

8. The district attorney determines that a conflict of
interest exists regarding the district attorney or the district
attorney staff.

In numerous ways—not the least of which are the facts that we see no indication
Bubke is an attorney or that the district attorney requested an appointment of
someone to serve as relator in place of Wied, that an affidavit was ever submitted
to the DOA by the court or district attorney, or that the court appointed Bubke due
to a conflict of interest “regarding the district attorney or the district attorney

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No. 2022AP1953

staff,” which is not remotely at issue in this case—this statutory provision is
clearly not supportive of Wied’s removal as relator.9

¶19 Wied is the “any person” who filed the verified complaint with the
district attorney and after twenty days of inaction, brought this open meetings
action. Wied was the one authorized by statute to pursue this matter “in the name,
and on behalf, of the state,” see WIS. STAT. § 19.97(1), and the circuit court erred
in removing her as relator.

Open meetings law violation

¶20 The circuit court determined that in order to violate the open
meetings law, Wheeler and Lambert had to “inten[d] to hide something” and that it
could not conclude they had such intent because the records of the May 12 email
preferences were eventually released in response to a public records request.
Thus, the court determined Wheeler and Lambert did not violate the open
meetings law. We conclude wrongful intent is not necessary and Wheeler and
Lambert violated the law.

¶21 The circuit court focused on WIS. STAT. § 19.88, “Ballots, votes and
records,” which provides:

9
Wheeler and Lambert also seek support from American Bar Association Criminal
Justice Standard 3-1.7(f): “The prosecutor should not permit the prosecutor’s professional
judgment or obligations to be affected by the prosecutor’s personal, political, financial,
professional, business, property, or other interests or relationships.” ABA Criminal Justice
Standards for the Prosecution Function, Standard 3-1.7 Conflicts of Interest (4th ed. 2017)
(emphasis added). Because Wheeler and Lambert provide no legal support for their position that
this rule, which relates to attorneys, has any legal impact upon nonattorney Wied bringing this
noncriminal case, we do not address it. See Borsellino v. DNR, 2000 WI App 27, ¶11, 232
Wis. 2d 430, 606 N.W.2d 255 (“We will not consider arguments unsupported by reference to
legal authority.”); ABKA Ltd. P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d
217 (1999) (we do not address undeveloped arguments).

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No. 2022AP1953

(1) Unless otherwise specifically provided by statute,
no secret ballot may be utilized to determine any
election or other decision of a governmental body
except the election of the officers of such body in any
meeting.[10]

(2) Except as provided in sub. (1) in the case of
officers, any member of a governmental body may
require that a vote be taken at any meeting in such
manner that the vote of each member is ascertained and
recorded.

(3) The motions and roll call votes of each meeting
of a governmental body shall be recorded, preserved
and open to public inspection to the extent prescribed in
subch. II of [WIS. STAT.] ch. 19.

Because the individual board members’ email preferences were eventually
released, the court concluded § 19.88(3) had been satisfied. But while compliance
with § 19.88(3) is necessary to avoid running afoul of that particular statutory
provision, such compliance does not immunize officials’ conduct in violation of
WIS. STAT. § 19.83(1).

¶22 WISCONSIN STAT. § 19.83(1) provides that “[a]t any meeting of a
governmental body, all discussion shall be held … only in open session ….” Even
if the email preferences did not violate WIS. STAT. § 19.88(3), they violated
§ 19.83(1).

¶23 While Wheeler himself repeatedly referenced the email preferences
sent to him by board members during the meeting as “votes,” he also referred to
the emails as “part of our conversation … to see where we are at in terms of
consensus.” And, indeed they were part of the conversation, as they were the

10
This exception is inapplicable here, as the board members voted to fill a vacancy on
the board, not to elect officers.

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No. 2022AP1953

culmination—and the most crucial part—of the discussion. Had Wheeler asked
members to state their preferences verbally, the conversation/discussion would
have simply continued with members verbalizing their preferred candidate for all
to hear. The email communications that kept the public in the dark as to each
board member’s preference amounted to “discussion” that was not “held … in
open session.” See WIS. STAT. § 19.83(1) (emphasis added).

¶24 Board members sharing their preferences with Wheeler in a manner
that hid the same from the public and other board members was concealment that
was initiated and invited by board president Wheeler. Wheeler instead could have
read aloud each member’s emails, invited board members to voice their
preferences verbally for all to hear, or employed a simple gameshow technique of
having members write their preferences on a sheet of paper and simultaneously
hold them up for all to see. What the open meetings law does not allow for,
however, is discussion communicated secretly so that members of the public are
kept in the dark as to what the elected school board members said. Here, these
emails were not communicating the individual board member’s favorite meatloaf
recipe, they were determining which single candidate would be put before the
board for the ultimate vote to fill the vacant seat, thereby affecting who would be
in a position of power to significantly impact district policy and finances.

¶25 Citing WIS. STAT. § 19.96, Wheeler and Lambert assert they “are
only personally accountable for a violation of the [o]pen [m]eetings [l]aw if they
knowingly attended a meeting held in violation of such law or otherwise knowingly
committed a violation by any other act or omission.” Wheeler and Lambert add
language to § 19.96 that the legislature did not choose to add. That statute
provides in relevant part:

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No. 2022AP1953

Any member of a governmental body who knowingly
attends a meeting of such body held in violation of this
subchapter, or who, in his or her official capacity,
otherwise violates this subchapter by some act or omission
shall forfeit without reimbursement not less than $25 nor
more than $300 for each such violation.

Sec. § 19.96 (emphasis added). Because the legislature only included the word
“knowingly” before “attends” and did not also include it before “violates,”
“knowingly” only applies with regard to a member of a governmental body who
“attends a meeting of such body held in violation of this subchapter.” See id.
“[K]nowingly” does not also apply with regard to a member who “otherwise
violates this subchapter by some act or omission.” See id.; see generally State ex
rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶44-52, 271 Wis. 2d 633,
681 N.W.2d 110.

¶26 Our supreme court considered this very WIS. STAT. § 19.96 language
in the open meetings law case of State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d
655 (1979). After discussing how “knowingly” applied with regard to an
alderman’s “attend[ance]” at a meeting that had not been properly noticed, the
Swanson court noted that the “text [of § 19.96] is silent on whether scienter is an
element of the offense when the violation of the [o]pen [m]eeting[s] [l]aw is one
other than attendance at illegally convened or conducted meetings.” Swanson, 92
Wis. 2d at 319. The court concluded that “scienter is not an element of an offense
when a defendant is charged with a violation of the [o]pen [m]eeting[s] [l]aw by
some act or omission other than attendance at illegally convened or conducted
meetings.” Id. at 321 (emphasis added). The court further expressed that

the purpose of the forfeiture section of the [o]pen
[m]eeting[s] [l]aw is directed more towards implementing
and ensuring the public policy “that the public is entitled to
the fullest and most complete information regarding the
affairs of government as is compatible with the conduct of

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No. 2022AP1953

governmental business,” [WIS. STAT. §] 19.81(1), rather
than towards punishing the wrongdoer.

Swanson, 92 Wis. 2d at 321-22.

¶27 Scienter is not an element of the particular violation at issue in this
case; Wheeler and Lambert did not need to knowingly violate WIS. STAT.
§ 19.83(1) through their May 12 conduct to be held liable. Their violation of the
open meetings law is not for knowingly “attending” a meeting in violation of the
law but for “otherwise violat[ing]” it. See WIS. STAT. § 19.96; Swanson, 92
Wis. 2d at 321-22. For Lambert, that was by her act of sending emails to Wheeler
communicating her preferences in a manner that kept that important “part of [the]
conversation” hidden from the public during the meeting, i.e., discussion through
her emails that was done outside of “open session.” For Wheeler, that was by his
repeated acts, as the school board president running the meeting, of initiating and
inviting the board members to communicate their candidate preferences to him in
a manner that kept the public and other board members in the dark during the
meeting as to how individual members were influencing the selection process on a
matter of significant public concern.

¶28 Because of their violations, Wheeler and Lambert “shall forfeit
without reimbursement not less than $25 nor more than $300.”11 See WIS. STAT.

11
We observe that $25 and $300 are respectively the same minimum
and maximum penalties that were in effect when this law was enacted in 1976.
1975 Wis. Laws, ch. 426, § 1. In today’s dollars, that minimum and
maximum would be just under $140 and just over $1,650. See, e.g., Inflation Calculator,
AMORTIZATION.ORG, https://www.amortization.org/inflation/ (last visited Jan. 24, 2025).
Conversely, a $25 penalty today would be the equivalent of less than $5 in 1976, and a $300
penalty today would be around $54 in 1976. See Id.; see also Inflation Calculator, FED. RES.
BANK OF MINNEAPOLIS, https://www.minneapolisfed.org/about-us/monetary-policy/inflation-
calculator (last visited Jan. 24, 2025).

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No. 2022AP1953

§ 19.96. The amount each should forfeit within this range is for the circuit court to
determine in its discretion upon remand. We emphasize that the forfeiture
imposed upon Wheeler and Lambert need not be identical. The record indicates
significantly less culpability on the part of Lambert.

¶29 This case provides an excellent example of the real-world impact of
failing to adhere to open meetings law requirements. Had Wheeler employed any
of the above-suggested discussion methods, see supra ¶24, or a similar alternative,
so that the public and other board members would have been aware of each
member’s candidate preferences contemporaneously with those preferences being
communicated to Wheeler during the meeting, the board would not have moved
Hassan forward as the sole candidate for the board’s up-or-down vote after the
third round of preference emails, if it would have at all. This is so because all
would have been aware Hassan in fact had not received the four email preferences
required to advance him for the up-or-down vote to fill the vacancy. But, the
secrecy of Wheeler’s process allowed him to erroneously announce his own
preferred candidate, Hassan, as having received four email preferences to advance
for the subsequent up-or-down vote, and no one was in a position—at the time
when it mattered, as opposed to after Hassan had already been selected, voted on,
and seated as a new board member—to monitor the process.

¶30 The use of Wheeler’s clandestine email process for communicating
board members’ preferences appears to us little different than if the members had
passed secret notes to Wheeler during an in-person meeting to indicate their
preferences—the very process Wheeler avers the board would have used if the
meeting had been in person. In their briefing, Wheeler and Lambert attempt to use
the secret-note method for in-person meetings to justify the secret email method

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No. 2022AP1953

used on May 12, but one manner of violating the open meetings law does not
justify another manner of violating it.

¶31 It is the very cloak of secrecy that the open meetings law is designed
to prevent that allowed Wheeler to affirmatively misrepresent to the public and
other board members, “We’ve got four votes for Mushir [Hassan]” and moments
later, “again, we do have four,” which misrepresentation resulted in the
appointment of a particular candidate—Wheeler’s preferred candidate—to fill one
of the seven seats on the board, again, to make all manner of policy and budgetary
decisions for the district.

¶32 Ultimately, the board members used their elected government
positions and authority to determine who would be appointed to fill the board
vacancy. Whether the email preferences are called “votes” or something else
matters little. As Wheeler avers, “[t]he purpose and intent [was] to narrow the
field to one or two candidates for consideration and formal vote.” Two of the four
applicants for the position were completely eliminated from consideration based
upon these email preferences, yet no one attending/watching the meeting knew
how any particular member used his or her elected government position and
authority to affect that outcome or even knew if it was true that Hassan and Wied
received the two highest scores to advance to the second round. The same
certainly holds for the preferences/“votes” as between Wied and Hassan. Again,
the determinative nature of these secret email preferences is unmistakable as
Hassan was put forward as the only choice for the board to officially vote on
because Wheeler wrongly announced that Hassan had “four votes.” Once Wheeler
made that announcement, the appointment of Hassan to fill the vacancy was
essentially a done deal.

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No. 2022AP1953

¶33 Stunningly, Wheeler and Lambert claim the process to ultimately
select their personally preferred choice of Hassan was “entirely transparent.” Had
the process truly been so, it would have been readily apparent to all members of
the board and the public in real time that Hassan never received the four votes
necessary to have his name put forth for the up-or-down vote to fill the vacancy.

Remedies

¶34 WISCONSIN STAT. § 19.97(4) provides that because the relator in this
case “prevails,” “the court may award actual and necessary costs of prosecution,
including reasonable attorney fees.” While the statute says the circuit court “may”
award such “costs of prosecution,” our supreme court has put a heavy thumb on
the scale of granting such awards.

¶35 After determining that the closed deliberations in Hodge had
violated the open meetings law and warranted voiding the challenged board action
denying the permit application to store junked automobiles, our supreme court
remanded the matter to the circuit court to determine whether costs and reasonable
attorney fees should be awarded under WIS. STAT. § 19.97(4). Hodge, 180
Wis. 2d at 76, 79. The court stated that

a prevailing relator under the [o]pen [m]eetings [l]aw
should be awarded attorney’s fees if an award would
advance the purpose of the [o]pen [m]eetings law: to
ensure that the public has the fullest and most complete
information possible regarding the affairs of government….
If this condition is met, fees are awarded unless there is a
showing of special circumstances which would render an
award unjust.

Id. at 78-79 (emphases added). The Hodge court directed the circuit court to

consider such things as whether an award of fees to [the
relator] would make him “whole”, thus providing him and
others in similar positions with economic incentive to

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No. 2022AP1953

privately enforce the Act…. Additionally, the court should
determine whether an award would deter future [o]pen
[m]eetings [l]aw violations and encourage governmental
bodies to provide more openness in government.

Id. at 79. The court did not address whether “special circumstances existed which
might render an award unjust,” but it went out of its way to “caution … that the
mere presence of good faith on the part of the [b]oard cannot alone be such a
circumstance.” Id. at 79.

¶36 In State ex rel. Buswell v. Tomah Area School District, 2007 WI
71, 301 Wis. 2d 178, 732 N.W.2d 804, the supreme court pressed its thumb down
further on the scale of awarding “costs of prosecution, including reasonable
attorney fees” under WIS. STAT. § 19.97(4). The court determined that the school
district in that case had provided insufficient notice as to the matters it would be
addressing at a meeting. Buswell, 301 Wis. 2d 178, ¶36. In considering the issue
of attorney fees for the prevailing relator, the court emphasized that the public
policy declared by the legislature in WIS. STAT. § 19.81(4) “requires that the
provisions of the open meetings law be liberally construed to advance the law’s
purposes.” Buswell, 301 Wis. 2d 178, ¶54. The court stated that in Hodge it had
“interpreted that requirement to merit awarding attorney fees to the prevailing
relator where doing so advances the purposes of the open meetings law.” Buswell,
301 Wis. 2d 178, ¶54. The Buswell court determined, as a matter of law, that
awarding attorney fees in the case before it would “advance[] the purposes” of the
law, as it would “provide an incentive to others to protect the public’s right to
open meetings and to deter governmental bodies from skirting the open meetings
law.” Id. The court did not remand for the circuit court to determine whether fees
were appropriate but instead “to determine the appropriate award” under “the
‘lodestar’ methodology.” Id., ¶54 & n.13.

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No. 2022AP1953

¶37 Harmonizing WIS. STAT. § 19.97(4), Hodge and Buswell, we
conclude that awarding attorney fees in this case would “advance[] the purposes”
of the open meetings law, as it would “provide an incentive to others to protect the
public’s right to open meetings and to deter governmental bodies from skirting the
open meetings law.” See Buswell, 301 Wis. 2d 178, ¶54. On remand, the circuit
court shall “award actual and necessary costs of prosecution, including reasonable
attorney fees,” see § 19.97(4), unless, in its discretion, it determines that special
circumstances would make an award unjust. See Hodge, 180 Wis. 2d at 79. If the
court fails to make such a determination, it shall decide the appropriate award,
utilizing the lodestar methodology to determine attorney fees. See Buswell, 301
Wis. 2d 178, ¶54 & n.13.

¶38 We remand for the circuit court to determine the appropriate amount
of forfeiture to be paid by Wheeler and Lambert, see supra ¶28, and to award
“actual and necessary costs of prosecution, including reasonable attorney fees,”
see WIS. STAT. § 19.97(4), unless Wheeler and Lambert can “show[] … special
circumstances which would render an award unjust.” See Hodge, 180 Wis. 2d at
79.

By the Court.—Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

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